Can disclosure of personal information under a state open-records law violate the U.S. Constitution? Under a recent decision by the U.S. Court of Appeals for the Sixth Circuit, the answer appears to be "yes," under certain circumstances. While the facts of the case are interesting enough on their own, the implications of the decision could change the access/privacy equation dramatically.

The case involved three undercover Columbus, Ohio, police officers who took part in an investigation of a drug conspiracy involving members of the Short North Posse -- a violent gang from the Short North area of Columbus. Forty-one members of the gang were tried on drug conspiracy charges, and their defense counsel requested information from the personnel files of law enforcement officers who participated in the investigation. The city, believing that disclosure was required under the Ohio Public Records Act, disclosed the information. The three undercover officers sued the city, claiming their 14th Amendment rights were violated when the information was disclosed. They argued that the city promised them confidentiality for their records and that disclosure to the defense counsel of their names, addresses, phone numbers, driver's license numbers -- as well as information about family members -- put them and their families at grave risk of physical harm.

The Sixth Circuit agreed. Writing for the court, Circuit Court Judge Karen Nelson Moore pointed out that "we do not mean to imply that every government act which intrudes upon or threatens to intrude upon an individual's body invokes the 14th Amendment. But where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the 'magnitude of the liberty deprivation ... strips the very essence of personhood.' Under these circumstances, the government act 'reaches a level of significance sufficient to invoke strict scrutiny as an invasion of personhood.'"

Implicit Rights

While there is no explicit right of privacy in the Constitution, the Supreme Court has concluded that such a right is implicit. However, the firmly established privacy rights accepted by the court have centered on intimate aspects of a person's life, such as contraception or, more controversially, abortion. The court's decision in Whalen vs. Roe, concerning whether access should be permitted to a database of prescription drug information, found that there could well be a constitutional right to informational privacy, but it stopped short of finding one in that case.

Opening up the possibility that a constitutional right of informational privacy exists means that, given the right circumstances, some federal court was likely to apply the right. The Sixth Circuit seems to be the first to really rise to the challenge, although its decision takes pains to limit its application. While finding that the undercover police officers had a constitutional right of informational privacy in their personal information when disclosure could likely lead to threats of violence or actual physical harm, the court shied away from saying that such a right existed under less-threatening circumstances. However, it said the city of Columbus would be required to notify the officers if disclosure of their personal information was contemplated. Notice was required, the court observed, to allow the officers an opportunity to challenge the disclosure in court before the cat was out of the bag.

Ohio Stands Alone

The egregious circumstances that gave rise to this case might not have happened anywhere but in Ohio. In virtually all states, the privacy exemptions in the open-records law would have protected this information; but the Ohio Public Records Act has no privacy exemption, and the city of Columbus believed it had no basis on which to withhold the information. Rulings of the state Supreme Court have supported this view, allowing disclosure of all kinds of personal information that probably would not get out in

Harry Hammitt  |  Contributing Writer